Mobley v. Head

Decision Date04 October 2001
Docket NumberNo. 00-13980,00-13980
Citation267 F.3d 1312
Parties(11th Cir. 2001) STEPHEN A. MOBLEY, Petitioner-Appellant, v. FREDERICK J. HEAD, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia, D. C. Docket No. 99-00023-2-CV-RLV

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

Stephen A. Mobley appeals the district court's denial of his petition for a writ of habeas corpus. Two issues were certified to us on appeal from the district court's denial of habeas corpus relief: (1) whether Mobley was denied effective assistance of counsel through his attorney's use of a "genetic deficiency" defense, and (2) whether Mobley was denied due process and effective assistance of counsel because the Georgia Supreme Court's opinion in Sabel v. State, 282 S.E.2d 61 (Ga. 1981), requiring the defense to turn over all expert opinions, including those that the defense does not intend to use at trial, had a chilling effect on his counsel that prevented him from retaining experts to develop mitigating psychiatric testimony. Because we find that the Georgia Supreme Court reasonably applied the relevant law to determine that Mobley had received effective assistance of counsel at his trial and his due process claim is procedurally barred, we AFFIRM.


In early 1991, Mobley stole a Walther .380 pistol from a car belonging to an acquaintance. On 17 February 1991, John Collins was working as the night manager at a Domino's Pizza franchise in Hall County, Georgia, when Mobley entered the store and robbed him at gunpoint. After emptying the cash register, Mobley moved Collins from the front of the store to the back office, took additional money from the office and then shot Collins in the back of the head before fleeing out a side door.

Mobley subsequently committed six additional armed robberies of various restaurants and drycleaners over a period of three weeks. He was apprehended after a high-speed chase as he fled the scene of an attempted armed robbery. Once in custody, Mobley confessed to the robberies and the murder of Collins. A Walther .380 found on the side of the road along the chase route matched the ballistics of the murder weapon.

Mobley was indicted for malice murder, felony murder, armed robbery, aggravated assault and possession of a firearm during the commission of a crime. Daniel Summer and Andrew Maddox were assigned by the court to defend Mobley. His first trial ended in a mistrial. Following an interim appeal on several issues, Mobley was tried a second time. Summer was also lead counsel for Mobley's second trial, but Charles Taylor replaced Maddox as Summer's co-counsel.

In bifurcated proceedings, the jury returned a verdict of guilty on charges of malice murder, felony murder, armed robbery, aggravated assault and possession of a firearm during commission of a crime. At the sentencing phase of his trial, evidence was introduced that, while in pre-trial detention, Mobley sexually assaulted another inmate on two occasions. Evidence at the sentencing phase also included testimony that Mobley tattooed the word "domino" on his shoulder, hung a Domino's pizza box lid on his cell wall and threatened a guard by saying he looked more and more like a Domino's delivery boy every day.

In their mitigation presentation, Summer and Taylor called Mobley's father, Charles Mobley, to testify. Ex. 12, Vol. X, at 2540. After relaying a brief history of the schools and institutions to which he sent Mobley as a child, Charles Mobley asked for mercy for his son. Id. at 2551. Counsel also called Doctor J. Stephen Ziegler, the psychologist who treated Mobley at the last facility where he was treated before reaching his eighteenth birthday. Id. at 2564. Ziegler testified that, at age 16, Mobley had a conduct disorder which is the equivalent of an adult antisocial personality disorder, and that persons with this disorder can become less violent and antisocial with age. Id. at 2598-99. Counsel also called Mobley's aunt, Joyce Ann Childers, who was the family historian. Ex. 12, Vol. XI, at 2683. Childers testified about a family history over several generations of violent behavior, alcoholism, abuse and other antisocial behavior among male and female members of the Mobley family tree. Id. at 2685-2710. Counsel also introduced evidence that, since his arrest, Mobley had attempted several times to plead guilty to all charges against him in exchange for a life sentence.

At the conclusion of the sentencing phase of the trial, the jury recommended a sentence of death. Mobley raised several enumerations of error on appeal, but his conviction was affirmed.1 See Mobley v. State, 455 S.E.2d 61 (Ga. 1995). Mobley filed a writ of habeas corpus with the Superior Court of Butts County, Georgia. At the habeas hearing, Mobley presented testimony from two mental health experts, psychiatrist Michael Gomez and psychologist Hugh Anthony Semone. Ex. 26, Vol. I, at 29, 87. Based on his interview with Mobley and a review of Mobley's records, Doctor Gomez concluded that Mobley's antisocial personality disorder was the result of his childhood environment, including abuse, neglect and inconsistent punishment. Id. at 38, 43-44. Doctor Semone also interviewed Mobley and other family members including Mobley's maternal grandmother. Id. at 101, 106. He also concluded that Mobley's "dysfunctional and disorganized and punitive" family structure was the most significant factor in Mobley's violent behavior pattern. Id. at 171. Mobley's grandmother, Mary Walraven, testified that her daughter was verbally and emotionally abusive to Mobley. Id. at 243-47. The Superior Court upheld the conviction but vacated Mobley's sentence on the grounds that Mobley was denied effective assistance of counsel for two main reasons: (1) his counsel presented a genetic defect theory to explain Mobley's violent and anti-social behavior without the assistance of an expert; and (2) his counsel failed to present other mitigating psychiatric evidence. Ex. 27, at 27-32.

The Georgia Supreme Court reversed and reinstated Mobley's death sentence. See Turpin v. Mobley, 502 S.E.2d 458, 461 (Ga. 1998). Reviewing the lower court's findings and the evidence produced at the habeas hearing, the court found that Mobley's counsel had conducted an extensive investigation, interviewed several witnesses, and obtained all available records from every school and treatment facility Mobley attended. Id. at 463-64. The court noted that, when interviewed by counsel in preparation for trial, Mobley denied that he had ever been abused or neglected, as did his parents and sister. Id. Based on the evidence developed by counsel, the court concluded that the sentencing phase strategy was reasonable, and, accordingly, denied Mobley's ineffective assistance claim. The court also found that Mobley's claim regarding the Sabel order was barred because that issue was addressed and rejected on direct appeal. Id. at 461-62. The federal district court also denied the writ.


Mobley's habeas petition was filed in federal district court in February 1999. Accordingly, this appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and specifically 28 U.S.C. § 2254. Because a state court initially considered the petition on the merits, we must deny the writ unless one of two exceptions applies. First, we may grant the writ if the state court rendered a decision "that was contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). We may also grant the writ if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. at §2254(d)(2). In conducting our review, the state court's factual findings are presumed correct unless rebutted by clear and convincing evidence. Id. at §2254(e)(1).


The Georgia Supreme Court denied Mobley's petition for habeas relief on the two claims before us, finding that Mobley's due process claim was procedurally barred and his ineffective assistance claims lacked merit. The federal district court also denied the writ, finding that the Georgia Supreme Court had reasonably applied federal law. We address each issue in turn.

A. Due Process Claim

Mobley argues that he is entitled to habeas relief because his right to due process was violated by the trial court's entry of a Sabel order. At the time of Mobley's trial, the Georgia Supreme Court's opinion in Sabel required that the defense turn over to the prosecution a report by every expert consulted, whether or not the defense intended to call the expert at trial. See Turpin, 502 S.E.2d at 461 (explaining effect of Sabel opinion). A Sabel order was duly entered in Mobley's case over his counsel's objection. After Mobley's trial, but prior to the filing of his direct appeal, the Georgia Supreme Court amended its position to require that the defense only turn over reports for experts it planned to use at trial. See Rower v. State, 443 S.E.2d 839, 842 (Ga. 1994).

On direct appeal, Mobley argued that this order "exceeded the permissible scope [of discovery] as outlined in Rower" and requested a new trial. Ex. 14, at 100. Mobley's assertion of error was conclusory, however, and no allegation of a chilling effect was made. The Georgia Supreme Court ruled that entry of theSabel order was error, but that the error was harmless because "Mobley does not assert, nor does the record reflect, that Mobley was required to provide or did in fact provide the state with any scientific reports in violation of the Rower rule." Mobley, 455 S.E.2d at 66.

Mobley did not raise the chilling effect argument until he filed his habeas petition,...

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